Discovery in Nursing Home Cases (Continued from page 34)


short-term jobs in one city and then leave for work in another city. If com- panies such as these referred the nurse, they may be potential defendants under a theory of respondeat superior. This could be important given the number of nursing homes that have declared bankruptcy over the past several years. Because of their transient nature, by the time that suit is filed, the nurse in question may be working at a different facility or may have moved out of state. Your initial discovery request should ask for the all biographical information on these individuals, so that they may be identified and promptly deposed. If you cannot decipher the name on the chart, attach the record as part of the request and circle the signature, so that who- ever is answering the interrogatories can identify the individual. Be persistent in this request. If it is not provided timely, follow up with defense counsel and, if necessary, file a motion to compel. You do not want to be in a position where just prior to the close of discovery or trial you realize that you have not been provided with crucial details concerning potentially important witnesses. Along those lines, be judicious with your inter- rogatories. The Maryland Rules provide for thirty (30) interrogatories, but they do not have to be asked at one time. If you can, save a few interrogatories for later in the case in the event that they are needed. The medical bills are also important.


Obviously, they serve to establish a component of economic damages. It is also crucial to identify the payer. If the resident’s care and treatment were paid for by Medicare or Medical Assistance (which is likely), there will be a statutory lien that must be verified and repaid. Medicare or Medical Assistance should be placed on notice early on so that it does not delay or prevent a settlement or resolution. There are certain records that are


unique to nursing home cases that should be requested. The Nursing


36


Home Reform Act, which is part of the Omnibus Budge Reconciliation Act of 1987, requires that nursing homes use a clinical tool known as the Resident As- sessment Instrument (RAI) to evaluate residents.1


This assessment is comprised


primarily of the minimum data set (MDS) and resident assessment proto- cols (RAP). The MDS must be completed on all


residents within fourteen (14) days after admission and must be reviewed at least every three (3) months for continued ac- curacy. Furthermore, the resident must be reassessed after a significant change in their physical or mental condition and at least once every 12 months.2


The


MDS may provide additional subjective and objective information regarding a resident’s condition. The MDS should be specifically requested in addition to the medical records. While it should be included with the medical records, do not rely on the facility to send you the MDS in response to a request for medi- cal records. Depending on the response to the


MDS, a RAP may be generated. This would occur when an MDS response suggests that the resident either has or may develop a specific functional or clinical problem.A RAP should be gen- erated when the initial MDS is prepared, when there are significant changes, and, at least, annually. As with the MDS, there should be a specific request for a resident’s RAP.3


A review of the medi-


cal records, the MDS and any RAP will reveal the resident’s clinical course, along with any problems identified by the facility, as well as its plans to address these problems. Once counsel has obtained all of


this information, it should be reviewed carefully to determine whether a physi- cian timely examined the resident upon admission (it usually has to take place


1


2 3


Department of Health and Human Ser- vices Office of Inspector General “Nursing Home Resident Assessment Quality of Care”, June 2001, at 2. Id. at 3. Id.


Trial Reporter


within 48 hours) and that all follow up examinations timely occurred (usually every 30 days). Examine the records to make sure that there is a consistent flow of treatment. Confirm that the resident was in the facility when an examina- tion or treatment is documented in the chart. For example, when a physician documents that he or she examined the patient, make sure that the resident was actually in the facility and not at an appointment outside of the facility. Compare the physician orders with the treatment that was rendered and/or the medications that were given to insure that the orders were followed. There is other information that should


be obtained through written discovery. Each nursing home has an administra- tor. Frequently, administrators move between different nursing homes. Discovery as to the name and current location of the administrator at the time of the incident should be requested. If the resident was assigned a physician through the nursing home, documents that relate to this relationship should be requested. Each facility also has a Director of Nursing (DON). Find out the identity and the current location of the DON at the time of the incident. As is set forth below, the nursing director may be an important witness if your case involves nursing care. Also, make sure that you obtain a copy


of the resident agreement or contract. This is important for several reasons. First, it may provide a basis in contract for the provision of appropriate care. Second, it may contain language that attempts to require arbitration of any claims as opposed to filing suit. Finally, be sure to obtain any brochures or ad- vertisements for the facility, as they may describe the level of care that was prom- ised to prospective residents.


Written Requests to Others All Maryland nursing homes are


required to be licensed by the state. Monitoring of nursing homes is the


(Continued on page 40) Summer 2007


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